Faulting U.S., Germany Frees a 9/11 Suspect

By DESMOND BUTLER

Published: February 6, 2004

HAMBURG, Germany, Feb. 5 — Citing a refusal by the United States to allow testimony from a suspected member of Al Qaeda in its custody, a German court on Thursday acquitted a former roommate of Mohamed Atta who was accused of providing support to suicide pilots in the Sept. 11, 2001, attacks.

The court cleared Abdelghani Mzoudi, the second suspect to be tried for involvement in the attacks, of accessory to murder and membership in Al Qaeda.

Mr. Mzoudi, 31, who arrived in Germany from his native Morocco in 1995 to study electrical engineering, sat quietly in a colorful ski sweater as the presiding judge, Klaus Rühle, pronounced him a free man, if not precisely an innocent one.

"You are acquitted," said the judge, glancing at the defendant, who was allowed to leave jail in December. "Not because the court is convinced of your innocence, but because the evidence was not enough to convict you."

German prosecutors, who said they would appeal the verdict, had already convicted another former roommate of Mr. Mzoudi, Mounir el-Motassadeq, on the same charges and based on virtually the same evidence. A German high court is scheduled to rule March 4 on an appeal of that conviction, the first and only one of a Sept. 11 defendant anywhere.

Last week, the high court made clear that the evidence issued in Mr. Mzoudi's trial would be a factor in their decision.

Prosecutors blamed the acquittal on the Bush administration's reluctance to make captured terrorists available for testimony and to allow prosecutors to make use of intelligence information on the terrorist network. "They must have their reasons, which they did not communicate to us," said the chief federal prosecutor, Kay Nehm, The Associated Press reported. "I find this conduct by the United States incomprehensible."

The Bush administration's stance could also imperil the criminal prosecution of the only person facing trial in the United States on charges of involvement in the Sept. 11 attacks. Zacarias Moussaoui, a French citizen, is accused of repeated contacts with the same Hamburg terrorist cell that Mr. Mzoudi was accused of supporting.

Family members of the victims of the Sept. 11 attacks, who had registered as co-plaintiffs in the trial, had sought a last-minute delay of the verdict on Thursday. They wanted the extra time to question officials at the United States Justice Department about a new legal approach being pursued in the Moussaoui trial that could make more intelligence material available.

The delay was denied, and the families expressed outrage with American officials' insistence on withholding witnesses and intelligence information.

"Somebody dropped the ball," said one co-plaintiff, Stephen Push, whose wife, Lisa Raines, was a passenger on American Airlines Flight 77, which was crashed by its hijackers into the Pentagon. "I have been calling ceaselessly to ask why the intelligence has not been made available in the German cases."

Reading the decision on Thursday, Mr. Rühle addressed families of victims of the attacks directly.

"Many who have followed this trial in Germany and America will look on this decision with incomprehension and bitterness," he said. "We should make clear that we at no point lost sight of the fact that this was about Sept. 11, one of the worst crimes in history."

Mr. Mzoudi declined to speak to reporters at the news conference, but his lawyers expressed jubilation.

"This is a great day for justice," Michael Rosenthal, one of his lawyers, said. "We're very proud of our justice system."

Hamburg officials have said they will seek to expel Mr. Mzoudi, who is not a German citizen. His lawyers have said, however, that they will file for his asylum in Germany on the grounds that he may face torture in Morocco.

In the early days of the trial, which began in August, a Qaeda informant testified that he had seen the defendant and Mr. Motassadeq in a Qaeda training camp in Afghanistan. Members of Mr. Mzoudi's defense team never denied that their client had indeed been in Afghanistan.

The defense further acknowledged that Mr. Mzoudi knew Mr. Atta, who is believed to have been the pilot who flew American Airlines Flight 11 into the north tower of the World Trade Center, and had made financial transactions for an alleged member of Al Qaeda.

But on Thursday, Mr. Rühle dismissed these actions as "everyday affairs," and said that the prosecution had not proven beyond doubt that Mr. Mzoudi was aware of his associates' plans to carry out an attack. "It appears that some of the preparation of the attacks was not hidden from you," Mr. Rühle told the defendant. "However, the opposite is also possible."

Under German terrorism laws existing at the time of the attacks, specific knowledge of terrorist activity must be proved in order to convict a defendant of conspiracy.

The prosecution's case against Mr. Mzoudi began to founder in December after the German police submitted a letter to the court summarizing intelligence gained from a captured Qaeda suspect, Ramzi bin al-Shibh, who is believed to have been a member of the Hamburg cell and central to the Sept. 11 plot.

According to the letter, Mr. bin al-Shibh told his American captors that neither Mr. Mzoudi nor Mr. Motassadeq was aware of the planning or the details of the attacks. Though the letter did not cite Mr. bin al-Shibh by name or describe the conditions under which he was interrogated, his identity was clear from the context.

The new evidence led Mr. Rühle to order Mr. Mzoudi's immediate release from custody and to express frustration that repeated requests by the court to American authorities for access to Mr. bin al-Shibh or to the full transcripts of his interrogations were denied on national security grounds.

Mr. Rühle echoed his own earlier concerns and noted that if there was no way to question Mr. bin al-Shibh's claim, Mr. Mzoudi must be given the benefit of the doubt. "The defendant must not bear the burden of missing evidence," he said.

The acquittal of Mr. Mzoudi is also a setback for the German government, which has asserted that terrorist suspects can be tried in criminal courts rather than in military tribunals, which the United States favor as a venue for many of the suspects it now has in custody.

When Mr. Mzoudi was released in December, Attorney General John Ashcroft expressed disappointment and criticized a Hamburg government official for saying the American approach of preferring military tribunals as "uncalled for."